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Gaile Kirksey OWENS

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Parricide - Murder for hire
Number of victims: 1
Date of murder: February 17, 1985
Date of arrest: 5 days after
Date of birth: September 22, 1952
Victim profile: Ronald Owens (her husband)
Method of murder: Beating with a tire iron
Location: Shelby County, Tennessee, USA
Status: Sentenced to death on January 15, 1986. Commuted to life in prison on July 13, 2010. Released on parole on October 7, 2011
 
 
 
 
 
 
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United States Court of Appeals
For the Sixth Circuit

 
Gaile K. Owens v. Earline Guida, Warden
 
 
 
 
 
 

Gaile Kirksey Owens was convicted of hiring Sidney Porterfield to murder her husband, Ronald Owens, who was beaten to death Feb. 17, 1985, at the home he shared with his wife and two sons in Bartlett, a Memphis suburb. Porterfield also is sentenced to death.

 
 

Gaile Owens gets parole on what would have been the anniversary of her execution

By Kay West - NashvilleScene.com

October 6, 2011

Little more than a year ago, Gaile Owens was facing death for hiring a man to kill her husband Ron Owens in 1985. As of last week, on what would have been the first anniversary of her scheduled execution, Owens now faces something once considered beyond hope a life outside prison.

On Sept. 7, 2011, more than 70 people gathered in the visitation room of the Tennessee Prison for Women. It was the first parole hearing for Owens, known here as Inmate No. 109737. As Owens awaited the outcome joined by her son Stephen and daughter-in-law Lisa, as well as her attorneys, friends, supporters and prison staff time slowed to a standstill in the silent room.

Finally, the lone parole-board member present, Patsy Bruce, looked at the petite, gray-haired Owens and said, "I have decided I am going to vote yes."

As much emotion as those eight words brought, Bruce reminded the group that she was just one of seven members, and that Owens' file would now be routed one by one through the board by hand until four votes reached the same decision, yea or nay. The process, she said, could take from two to four weeks, depending on how the votes were tallied along the way.

Thus began an online vigil, conducted by Lisa and Stephen, attorneys Gretchen Swift and Kelley Henry, and dozens of friends and supporters. They started checking daily the page dedicated to Tennessee Felony Offender Information on the Board of Probation and Parole's website.

Day after day, the status stayed the same. Supervision Status: Incarcerated. Location: Tennessee Prison for Women. Sentence Begin: 2/22/1985. Parole Eligibility: 9/03/2011. Parole Hearing: 9/07/2011. And day after day, the response next to Hearing Result remained frustratingly the same: Pending.

Until the morning of Sept. 28 three weeks to the day after the parole hearing, and one year after the day Gaile Owens would have been executed, had then-Gov. Phil Bredesen not commuted her sentence. That day Lisa Owens checked the website. Under the box marked Hearing Result was the word they had been praying for, but hardly dared believe they would see:

Parole.

It was just before 7 a.m., and Stephen had already left for work. Lisa frantically called him and told him to get on the site. Still unsure if what they were seeing meant what they hoped, Stephen called Swift. She assured him it did.

Lisa, Stephen, Swift and Henry drove to Stewart's Lane and passed through prison security to revel in the news with Gaile. For more than two decades, Stephen who at age 11 found his father brutally beaten and barely alive in the family's suburban Memphis home maintained no contact with his mother. Today, they gathered in the same room where Patsy Bruce said yes.

"Stephen and Gaile embraced for a long time," says Henry. "I think Gaile was still a little bit numb, but overall, there was just joyful gratitude, and lots of joyful tears from all of us."

Presumably, there were two men that day who were not crying tears of joy: Tennessee Board of Probation and Parole Chairman Charles Traughber and board member Chuck Taylor, who both voted to reject her request. Voting yes with Bruce were members Ronnie Cole, Joe Hill and Lisa Jones. A seventh vote was not necessary.

Now, only one box remains blank on Gaile Owens' status: Sentence End.

According to Henry, it could be one to three weeks before Lisa and Stephen Owens make the trip they have been praying for since Stephen and Gaile reconciled in 2009 the one that will start his mother's life on the other side of prison walls.

First, she must be assigned a parole officer who has experience with people who have been incarcerated a long time. During a rare moment of levity during the hearing, Bruce advised Owens, "You will be on parole the rest of your life. Looking at your file and the people here today, you do not seem to have trouble making friends. Make a very good friend of your parole officer."

Once Owens is released, she will first live with Patricia and Eugene Williams, volunteers who have been visiting her in prison for 13 years and have offered her a room in their Davidson County home as she acclimates. She will be looking for a job, a prospect that close friend and team member Katy Varney says she is both apprehensive and excited about. She also plans to volunteer with the YWCA's Domestic Violence Program. She prays daily that a meeting with her younger son, who still lives in Memphis, is somewhere down the road.

But mostly, Owens told Varney, her to-do list is pretty simple.

"I'm excited to see new things, see what's out there. You see things on television, but that's not the same as seeing them in person. I want to have a bubble bath! I hope to watch my grandchildren play. But the biggest thing for me, something I have literally dreamed about so many nights for so many years, is to just walk in a park with my sons. That would be my dream come true."

 
 

Tennessee woman released after 25 years on death row

By Tim Ghianni - Wgntv.com

October 7, 2011

NASHVILLE, Tenn (Reuters) - A Tennessee woman who sat on death row for a quarter-century for the killing of her husband was released from custody on Friday.

Gaile Owens, 58, was greeted by a small group of friends and family when she was released from the Tennessee Prison for Women.

"Her release plan was approved and she will be reporting regularly to a parole officer here in Nashville," said Melissa McDonald, spokeswoman for the Tennessee Board of Probation and Parole, which last week approved the release.

Owens had been scheduled to die by lethal injection September 28, 2010, but that sentence was commuted by then Governor Phil Bredesen, which made parole a possibility.

Bredesen said at the time that he spared Owens after a review showed she had admitted her guilt and that other people who committed similar crimes generally drew lesser sentences. Bredesen also noted that she had accepted a conditional plea agreement for life imprisonment prior to her original trial.

Bredesen said that while Owens' claims that she had been physically abused by her husband were "inconclusive," she may have been suffering from "battered woman syndrome," which was another factor in his decision.

Parole was recommended by the single member of the board who was at her first parole hearing September 7, 2011. That recommendation was forwarded to other members of the board, who considered the case and recommended 4-2 to parole her.

During her parole hearing, Owens testified about sexual assaults and physical abuse she suffered from her husband that she said led her in 1984 to contract a man to kill him. She said that during her court trial in 1986 she hadn't talked about abuse because she felt it would harm her children.

A year to the day after she was scheduled to be the first woman executed in Tennessee in more than a century, the board announced that she would be given her freedom.

Owens had been sentenced to die after being found guilty in 1986 of arranging to have her husband killed.

Evidence showed she had solicited several men in poor Memphis neighborhoods with offers of up to $10,000 to kill her husband Ron Owens.

Sidney Porterfield, the man Owens hired, used a tire iron to beat her husband in the couple's suburban Memphis home while Owens and their two sons were away.

Porterfield, now 68, also was sentenced to death and has been on death row since, according to Dorinda Carter, spokeswoman for the state Department of Correction. Owens was convicted in 1986 of being an accessory to first-degree murder.

 
 

Bredesen commutes death sentence of Bartlett's Gaile Owens

Convicted in murder of husband, Bartlett woman could be free soon

By Richard Locker - CommercialAppeal.com

July 14, 2010

NASHVILLE -- Gov. Phil Bredesen on Wednesday commuted a Bartlett woman's 1986 death sentence to life in prison.

Gaile Owens was scheduled to be executed Sept. 28.

With sentence credits, she could be eligible to ask the state Board of Paroles to consider her release from prison as soon as next year.

Owens, now 57, was convicted in Shelby County Criminal Court of hiring Sidney Porterfield of Memphis to kill her husband, Ronald Owens, who was beaten to death with a tire iron at the couple's Bartlett home in 1985.

Porterfield, now 67, was also sentenced to death, but he has a hearing set for Sept. 30 to determine if he is mentally fit under the law for execution.

Gaile and Ronald Owens' son, Stephen Owens, could not be reached for comment Wednesday. But the son, who had been estranged from his mother until 2009, pleaded publicly for her life during an April news conference.

"I am asking for your mercy. I am the face of the victim in this tragedy," Stephen Owens said April 20. "Last year I walked into the Tennessee Prison for Women and saw my mother for the first time in more than 20 years. I looked my mother in the eyes and told her I forgive her."

This marks the second death sentence that Bredesen has commuted. In 2007, he commuted the death sentence of Michael Joe Boyd of Memphis to life imprisonment without the possibility of parole. Boyd was convicted of murder in the perpetration of a robbery for the shooting death of William Price outside the Lorraine Motel on Nov. 8, 1986.

The governor cited two major considerations in his decision to commute Owens' sentence:

"First, there's at least a possibility that she was in an abusive marriage. While that in no way excuses arranging for murder, that possibility of abuse and the psychological conditions that can result from that abuse seems to me at least a factor affecting the severity of the punishment.

"Second, Mrs. Owens was offered a plea bargain prior to her trial, of life imprisonment in exchange for her guilty plea. She accepted that plea bargain, the responsibility and the punishment, and the district attorney clearly considered that an appropriate resolution as well."

However, the governor said, that plea bargain offer was contingent on Porterfield accepting it as well. When he refused, the offer was withdrawn by prosecutors and she went to trial with Porterfield as a co-defendant.

Bredesen also said that his office reviewed 33 similar Tennessee cases of women arranging and being charged with the murder of their husbands, some involving domestic abuse and some not. He said that only two of the cases resulted in the women being sentenced to death.

"One of them, (former governor) Lamar Alexander commuted," the governor said. "The second one I'm commuting today."

"I was not surprised at the decision as I watched the news of the groups petitioning him for the commutation," said former Bartlett Police Chief Don Wray, who handled the investigation of the case.

But Wray believes Bredesen did what he thought was right. "I always felt it was my job to pursue those responsible on the victim's behalf, charge them and bring them to court. It is the court's duty to determine punishment, not mine."

Gaile Owens Timeline

1985

Feb. 17 -- Ronald Owens is murdered at his Bartlett home.

Feb. 22 -- Gaile Owens and Sidney Porterfield are arrested and later indicted.

1986

Jan. 2 -- Prosecutors offer plea bargain to both Owens and Porterfield, contingent on both accepting it. Owens accepts it, but Porterfield rejects it.

Jan. 14 -- Owens is convicted of accessory before the fact to first-degree murder. Porterfield is convicted of first-degree murder.

Jan. 15 -- Both are sentenced to death.

1998, 2009

Several courts deny Owens' appeals or decline to hear her case.

2010

April 19 -- Tennessee Supreme Court declines request for commutation, sets execution for Sept. 28.

April 20 -- Owens' son, Stephen Owens, asks Gov. Phil Bredesen to commute Owens' death sentence.

July 14 -- Bredesen commutes death sentence to life in prison

 
 

SUPREME COURT OF TENNESSEE

January 19, 1988

STATE OF TENNESSEE, APPELLEE
v.
SIDNEY PORTERFIELD AND GAILE K. OWENS, APPELLANTS

Shelby Criminal. Honorable Joseph B. McCartie, Judge.

Petition to Rehear Denied February 29, 1988

Cooper, J., Harbison, C.j., Fones, Drowota and O'Brien, JJ., Concur.

The opinion of the court was delivered by: Cooper

COOPER, J.

This is a direct appeal from the sentences of death imposed on the defendants, Sidney Porterfield and Gaile K. Owens, for the killing of Mrs. Owens' husband, Ronald Owens. The defendant, Sidney Porterfield was convicted of murder in the first degree. The defendant, Gaile K. Owens, was convicted of accessory before the fact, to wit: murder in the first degree.

The defendants question the sufficiency of the evidence, rulings by the trial court on pre-trial motions, on voir dire, the admission of evidence, the argument to the jury by the state, the court's instructions to the jury. The defendants also insist that the sentencing provisions of the Tennessee Death Penalty Act, T.C.A. 39-2-203, are unconstitutional.

After consideration of the several issues and of the entire record, we are of the opinion that no reversible error was committed in either the guilt or sentencing phase of the trial, that the verdicts and sentences are sustained by the evidence, and that the sentences of death under the circumstances of this case are in no way arbitrary or disproportionate. See State v. Harbison, 704 S.W.2d 314 (Tenn. 1986); State v. Austin, 618 S.W.2d 738 (Tenn. 1981); State v. Groseclose, 615 S.W.2d 142 (Tenn. 1981).

There is little controversy concerning the material facts. The evidence shows that over a period of months, Mrs. Owens solicited several men to kill her husband. One of these men was Sidney Porterfield. She met with him on at least three occasions, the last being at 2:30 p.m. on Sunday, February 17, 1985. At that time, she told him that her husband would either be home alone that night or would be at the church playing basketball.

That evening Mr. and Mrs. Owens and their two sons attended evening church services. Afterwards, when Mr. Owens remained at church to play basketball, the boys asked, as they usually did, to stay with their father. Mrs. Owens refused their request and took them to a restaurant for diner and then to the home of Mrs. Owens' sister, where they stayed until approximately 10:30 p.m.

When they arrived home at about 11:00 p.m. Mr. Owens' automobile was in the driveway. The doors were open, the interior light was on and Mr. Owens' coat and tie were on the seat. They found the back door to the house partially open, and the keys in the lock. There were signs of a struggle in the kitchen and blood was splattered on the wall and floor. Mr. Owens was found in the den unconscious, his head covered with blood. Mr. Owens died some six hours later from multiple blows to his head.

The autopsy revealed that Mr. Owens had been struck at least twenty-one times with a blunt instrument, described by the forensic pathologist as a long, striated cylinder such as a tire iron. The blows had driven his face into the floor, crushed his skull and driven bone fragments into his brain. Mr. Owens also had sustained extensive injuries to his hands and strands of hair between his fingers indicated he had been covering his head with his hands when he was beaten.

After the killing, George James, one of the men solicited by Mrs. Owens to kill her husband, contacted the police and told them of Mrs. Owens' offer. James then assisted the police by permitting them to record telephone conversations he had with Mrs. Owens. After one of the calls, James met Mrs. Owens in the Raleigh Springs Mall in Memphis. James was wearing a hidden body microphone, which was being monitored by police in a nearby automobile. Mrs. Owens paid James sixty dollars to keep quiet, telling him that it was all the money she had. She also stated that she had had her husband killed because of "bad marital problems." Mrs. Owens was placed under arrest at the Conclusion of her meeting with Mr. James.

At first, Mrs. Owens claimed that she only had hired people to follow her husband and "to rough him up." She did admit paying out some $4,000 to $5,000 to various men for expenses. Later she confessed to offering three men $5,000 to $10,000 to kill her husband and to talking with a man known as "little Johnny" at 2:30 p.m. on the day of the murder about killing her husband. She had promised to pay him three or four days after the murder. When asked why, Mrs. Owens stated, "e've just had a bad marriage over the years, and I just felt like he had, mentally I just felt like he had been cruel to me. There was very little physical violence."

The man who met Mrs. Owens on Sunday afternoon was identified by witnesses as Sidney Porterfield. A witness also placed Mr. Porterfield in the vicinity of the Owens' house a week before the killing.

Mr. Porterfield also made a statement to the police which was entered into evidence. According to Mr. Porterfield, he met with Mrs. Owens on three occasions to discuss plans for the killing of Mr. Owens, the last being at 2:30 p.m. on Sunday, February 17, 1985. He stated that Mrs. Owens offered him $17,000 to kill her husband, and that he told her he would have to check out the situation. (Shortly after her husband's funeral Mrs. Owens had asked her father-in law for $17,000 "to pay some bills.") He further stated that he went to the Owens' house that evening at about 9:00 p.m. On leaving his automobile, he put a tire iron in his pocket in case he encountered a dog. Porterfield stated he was walking in the back yard of the Owens' house when Mr. Owens came home; that Mr. Owens would not accept his explanation that he was looking for a house, but informed him he was going to hold him until the police arrived; that Mr. Owens grabbed him by the arm and attempted to pull him into the house. According to Porterfield, Mr. Owens had a brief case in one hand and was grasping Porterfield with the other. (No attempt was made to explain how Mr. Owens, with his hands thus occupied, unlocked the door to the house.) Porterfield said he tried to break away and, when he was unsuccessful, struck Mr. Owens with the tire iron. The men were then in the kitchen. Mr. Owens threw his hand up for protection, but would not release Mr. Porterfield. Porterfield then continued to strike Mr. Owens with the tire iron, with the result that he did extensive damage to both of Mr. Owens' hands and to his head. On leaving the Owens' house, Mr. Porterfield threw the tire iron and the gloves he was wearing into a dumpster. They were never recovered.

Defendant Porterfield offered no evidence in his defense. Mrs. Owens presented the testimony of a neighbor, who testified that Mrs. Owens was almost hysterical after her husband was found. A funeral home employee also testified. He stated that a large balance was owing on Mr. Owens' funeral bill, presumably to show that Mrs. Owens did have large debts to pay after her husband's death as she had represented to her father-in-law in attempting to secure a loan.

Mr. Porterfield insists that the trial court erred in admitting co-defendant Owens' out-of-court confession into evidence. Mr. Porterfield argues that the recitals in Owens' statement that she would have the money to pay Porterfield three to four days after the murder, that Porterfield told her "he had never been able to catch up with him [Mr. Owens] and nothing had ever been right, and that she did give Porterfield a key to the house did not "interlock" with defendant Porterfield's confession, and their admission into evidence was a violation of the rule set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

In Bruton v. United States, (supra) , the court held that an inculpatory confession of a non-testifying co-defendant should not have been admitted in a joint trial with the defendant, who had not confessed his participation in the crime. In Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979), a plurality of the United States Supreme Court held that admission of interlocking confessions with proper limiting instructions conforms to the requirements of the Sixth and Fourteenth Amendments. Following this decision, this court held that where confessions of jointly tried co-defendants are similar in material aspects there is no violation of the Bruton rule. But, where the confession of one non-testifying co-defendant contradicts, repudiates or adds to material statements in the confession of the other non-testifying co-defendant so as to expose him to an increased risk of conviction or an increase in the degree of the offense with correspondingly greater punishment, Bruton is violated. See, e.g., State v. King, 718 S.W.2d 241, 247 (Tenn. 1986); State v. Elliott, 524 S.W.2d 473, 477-478 (Tenn. 1975).

Recently, however, the United States Supreme Court abandoned the reasoning of the plurality in Parker regarding interlocking confessions and held in Cruz v. New York, U.S. , 107 S.Ct. 1714, L.Ed.2d (1987), that where a non-testifying codefendant's confession incriminating the defendant is not directly admissible against the defendant, the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant and even if the defendant's own confession is admitted against him. However, the defendant's confession may be considered at trial in assessing whether his codefendant's statement are supported by sufficient "indicia of reliability" to be directly admissible against him (assuming the "unavailability" of the codefendant) despite the lack of opportunity for cross-examination and may be considered on appeal in assessing whether any Confrontation Clause violation was harmless. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). This rule was an adoption of Justice Blackmun's Concurring opinion in Parker v. Randolph, that the Bruton error in that case was harmless. 99 S.Ct. at 2141-2143.

It was error, therefore, to admit Owens' unredacted confession. Nonetheless, under the facts of the case, in light of the overwhelming evidence of guilt, considering only Porterfield's confession and the evidence of the other witnesses and the circumstances of the murder, the Bruton error was harmless.

While not raising a Bruton issue, Mrs. Owens insists she was prejudiced by having to try her case with that of Mr. Porterfield as it prevented her from pleading guilty and taking a proffered life sentence. The record reveals that the state indicated to defense counsel that it would recommend life sentences for both defendants if both defendants would plead guilty. There was no offer to one defendant to the exclusion of the other. In short, even if the cases had been severed, Mrs. Owens would have had to stand trial and would have been subject to the imposition of the death penalty if the jury found the evidence sufficient. The trial court's denial of a severance under these circumstances was not an abuse of discretion. Peabody v. State, 556 S.W.2d 547, 550 (Tenn. Crim. App. 1977); Seaton v. State, 4 Tenn. Crim. App. 452, 472 S.W.2d 905, 906 (1971).

In a separate action, both defendants moved to have their cases severed, insisting that the denial of a severance interfered with their use of peremptory challenges. A motion for severance is addressed to the discretion of the trial court and its decision will not be reversed absent a showing of prejudice to the defendants. State v. Coleman, 619 S.W.2d 112, 116 (Tenn. 1984). Rule 8(c)(1) of the Tennessee Rules of Criminal Procedure provides that defendants shall be mandatorily joined for trial where, as here, "each of the defendants is charged with accountability for each offense included."

The record shows that counsel for defendants were permitted to collaborate and confer with each other in the exercise of peremptory challenges so as not to duplicate their challenges and thereby reduce the effective number of peremptory challenges available to each. As to the argument, that one defendant on occasion would exclude a juror satisfactory to the other defendant, we see no prejudice in this action. The jury selection procedures are designed to insure the selection of a fair and impartial jury, not to enable the accused to select particular jurors. State v. Simon, 635 S.W.2d 498, 508 (Tenn. 1982). There is nothing in the record to indicate that the jury finally selected was not an impartial and unbiased jury.

The defendants also raise a number of issues with relation to the voir dire. Specifically, they insist that the trial Judge erred in denying their motions for individual, sequestered voir dire, that he unduly limited the questioning of prospective jurors with respect to exposure to pre-trial publicity, and that he improperly excused for cause prospective juror, Charlayne Picket. The defendants also insist that the trial court erred in refusing to grant a mistrial, when several prospective jurors overheard a newsreporter's story on trial proceedings, and when two jurors mad prejudicial remarks during voir dire. Further, the defendant Porterfield charges the state with using their peremptory challenges to systematically exclude blacks from the jury. We have carefully considered each of these contentions and found them to be without merit. The ultimate goal of a voir dire is to see that the jurors are competent, unbiased, and impartial. On reading the voir dire in this case, we are impressed with the fact that the counsel attained this goal. We are further of the opinion that no prejudicial error was committed by the trial court in its numerous rulings during voir dire.

The basis for the request for individual voir dire was the fear that prospective jurors had been exposed to and remembered newspaper, television, and radio reports of the crime for which the defendants were being tried. Where a crime is highly publicized, the better procedure is to grant the defendants individual, sequestered, voir dire. However, it is only where there is a "significant possibility" that a juror has been exposed to potentially prejudicial material that individual voir dire is mandated. State v. Claybrook, 736 S.W.2d 95 (Tenn. 1987); Sommerville v. State, 521 S.W.2d 792, 797 (Tenn. 1975).

In the instant case, the trial Judge questioned prospective jurors as to their knowledge of the case from either having discussed it in their neighborhood, or having read it in the newspaper, or having heard it on the radio or television. Most of the prospective jurors who had been exposed to some type of pre-trial publicity responded that they only vaguely recalled what they had read or heard. Many did not recall anything they had read or heard. The trial court also inquired of every prospective juror exposed to pre-trial publicity, whether they could set aside their recollection and render a decision based only upon the evidence presented at trial. Five prospective jurors stated they could not and were excused by the court for cause. During this questioning of prospective jurors on pre-trial publicity, the court was careful to see that nothing inflammatory or prejudicial to the defendants was revealed. And, the answers of the jurors actually seated in the case do not give any indication that the jurors remembered the pre-trial publicity in any detail or that they were prejudiced or biased against the defendants, or either of them, as a result of the pre-trial publicity. Under these circumstances, we see no abuse of discretion in the trial court denying individual, sequestered voir dire, nor any prejudice resulting to the defendants because of his ruling.

Exception also was taken by the defendants to the exclusion of a prospective juror, Charlayne Pickett, for cause. The substance of Ms. Pickett's statements on voir dire was that she would automatically vote not to impose the death penalty in this or any other case regardless of the law and evidence. This disqualified her as a juror, and the trial court correctly excused her for cause. See Wainwright v. Witt, 496 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

During the voir dire, defendants moved for a mistrial when (1) one prospective juror in answer to defense counsel's question of why he could not consider life as punishment for first degree murder stated that there was only a certain amount of time that a person serving a life term would stay "in there" and that something had to be done about existing crime; and (2) when a juror indicated that his wife had told him about the case and that he knew" what went down" and that "there is a case." Both jurors were peremptorily challenged and were excused by the court. We see no prejudicial error resulting from these remarks. The first prospective juror was merely responding to defense counsel's question as to why he would refuse a life sentences. The second never revealed what he knew about the case, and the trial court admonished him, and any prospective jurors within hearing, that anything they had learned about the case prior to trial could not be used as evidence in the juror's deliberations. Further, the defendants have failed to demonstrate that the jury which heard the case was prejudiced or biased by the statements of the two prospective jurors. The comments did not in any way affect the presumption of innocence or in any way lessen the burden of the state to prove its case.

During the voir dire, it was discovered that a newsreporter had called in a report of the court proceedings using a pay telephone located outside the courtroom, and that several prospective jurors were nearby. The report had to do with a statement of defense counsel that some news agencies were reporting that Mrs. Owens had plead guilty to the charges against her. Counsel agreed at the time that to eliminate any possibility of prejudice, the trial court would ask potential jurors whether they had overheard any conversation concerning the case and admonish them that any news report was not evidence. When it developed that several prospective jurors had overheard the reporter's telephone call (none indicating they had heard anything specific), defendants moved for a mistrial or in the alternative a new jury panel. The court denied the motion, but did grant defendants individual voir dire on this incident. Of those questioned individually on this issue, none had overheard anything prejudicial or even substantial. It follows that the trial court did not commit prejudicial error in denying defendants' motion for a mistrial.

The defendant Porterfield insists that the blacks were underrepresented on the panels of prospective jurors and that this was due to the systematic exclusion of blacks in the jury selection process. He further charged that the trial Judge erred in refusing an offer of proof on the issue. While systematic exclusion is charged in this court, it was not the basis of the objection to the jury panel in the trial court. However, whenever a defendant in an identifiable class raises the specter of discrimination in the selection of prospective jurors, he should be given the opportunity to develop his charges. However, from the record before us, no prejudice resulted to Mr. Porterfield from the rulings by the trial court in this area. The jury as finally selected consisted of two black males, five white males and five white females. The state had four unused peremptory challenges, and could have excluded the two black males from the jury had their goal been the exclusion of blacks.

In the bifurcated sentencing hearing, the forensic pathologist again testified for the state concerning the circumstances of Mr. Owens' death, such as blood being inhaled, bone fragments being driven into his brain, and the fact that Mr. Owens had lived six hours after the beating. Two photographs showing the head wounds suffered by Mr. Owens also were introduced.

In addition, the state presented proof that Mr. Porterfield had been convicted of robbery with a deadly weapon in 1968 and of simple robbery twice in 1971. The state also relied on the circumstances of the killing as shown by evidence in the guilt phase of the trial.

In mitigation, the defendant Owens presented evidence that she had been treated by a psychiatrist on one occasion in 1978 for severe behavioral problems. She also called two jail employees who testified that Mrs. Owens was a good prisoner who caused no problems, volunteered to work, and attended Bible study classes. Mr. Porterfield presented no evidence in mitigation.

In imposing the sentence of death, the jury found three aggravating circumstances with respect to Porterfield, and two with respect to Mrs. Owens. No mitigating circumstances were found. Specifically, the jury found that Mr. Porterfield (1) had been previously convicted of one or more felonies involving the use or threat of violence to the person; (2) that he committed the murder for remuneration or the promise of remuneration, or employed another to commit the murder for remuneration, or the promise of remuneration; and (3) that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind. See T.C.A. 39-2-203(i)(2), (4) and (5). The jury found the same aggravating circumstances in sentencing Mrs. Owens, except for the finding of previous conviction of a felony involving the use or threat of violence to the person.

Defendant Porterfield challenges the sufficiency of the evidence as to the jury's findings in the sentencing hearing. He points out that the earlier convictions shown were that of Sydney Porterfield, Jr., and argues that there is no evidence to show that he and Sydney Porterfield, Jr. are the same person. On this issue, the record shows that a fingerpoint technician from the Shelby County Sheriff's Department testified that the defendant's thumbprint matched the thumbprint of the person convicted under the name of Sydney Porterfield, Jr. The jury was justified in our opinion in accepting this testimony and in concluding that the defendant and Sydney Porterfield, Jr. are the same person.

Defendant Porterfield also insists that there is insufficient evidence to show that the murder was for remuneration or the promise of remuneration, or to show that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind. As to the first contention, the statement Mr. Porterfield gave to the police describing his meeting with Mrs. Owens and the purpose of the meeting was sufficient for the jury to find that the murder was for remuneration or the promise of remuneration. As to the latter insistence, there is evidence that Mr. Porterfield hit Mr. Owens with a tire iron at least twenty-one times, causing several fractures to the skull, to facial bones, and to Mr. Owens' hands. Several of the blows to the head were inflicted when Mr. Owens was on the floor and attempting to shield his head by his hands. In our opinion, the evidence is sufficient to support the jury's Conclusion that the murder of Mr. Owens in the fashion described was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind. See State v. McNish, 727 S.W.2d 490, 494 (Tenn. 1987); State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985).

While not directly challenging the sufficiency of the evidence on which the jury predicated the sentence of death, Mrs. Owens does insist that the trial court erred in not allowing her to show that she had filed a motion asking the court to allow her to plead guilty and accept the sentence of life proffered by the state. The state had indicated that it would accept such a plea, conditioned upon both defendants pleading guilty. The state withdrew the offer when Mr. Porterfield declined to plead. Mrs. Owens wanted to show these negotiations to the jury as a mitigating circumstances.

In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the United States Supreme Court held that the

Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.

98 S.Ct. at 2965. The Court emphasizes, however, in a footnote to this sentence that,

othing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense.

This court has held that evidence is relevant to the punishment only if it is relevant to a statutory aggravating circumstance or to a mitigating factor raised by the defendant. Cozzolino v. State, 584 S.W.2d 765, 768 (Tenn. 1979). Evidence regarding Mrs. Owen's interest in accepting a plea bargaining offer is not relevant to either the issue of punishment or to any mitigating factor raised by the defendant, and was in our opinion properly excluded.

Both defendants insist that the trial court erred in permitting the introduction of two photographs at the sentencing hearing to show the nature and extent of the injuries inflicted upon the victim. The defendants insist that the photographs were without any probative value and that the prejudicial effect of the photographs mandates a reversal of the defendants' convictions. We see no merit in this argument. It is well-settled that the admissibility of photographs is a matter committed to the sound discretion of the trial Judge, whose ruling will not be overturned on appeal absent a clear showing of abuse of discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). The photographs in question were relevant to proving one of the statutory aggravated circumstances -- that is, whether the murder was especially heinous, atrocious or cruel in that it involved torture or depravity of mind. While undoubtedly prejudicial to the defendants, in the sentencing stage of the proceedings and in view of the aggravating circumstance alleged, they were highly probative of the nature and extent of the injuries inflicted upon Mr. Owens. While every death by beating is not as a matter of law to be included within the category of "especially heinous, atrocious, or cruel. . . ," the infliction of heavy, repeated, and vicious blows to a helpless, conscious victim may easily be found by a trier of fact to fall in that category. See State v. McNish 727 S.W.2d 490 (Tenn. 1987).

The defendants argue that the photographs were inadmissible because of the state's assurances during voir dire and during the guilt phase of the trial that it would not seek to introduce the morgue photographs. Defendants insist that was an oral stipulation, which caused them to alter their voir dire of the jury. We find nothing in the record to support this argument of the defendants. The fact that the state stated it would not introduce the morgue pictures in the guilt phase of the trial was not a commitment that the picture would not be offered to the jury in the sentencing phase, where they were relevant to proof of an aggravating circumstance.

The defendants insist that the state erred in failing to give the required notice of the aggravating circumstances it intended to rely upon in the sentencing phase of the trial. The record shows that throughout their preparation for trial, the defendants knew that the state would seek the death penalty. However, notice of the aggravating circumstances the state intended to prove was not given the defendants until the day the trial began. Rule 12.3(b) of the Tennessee Rules of Criminal Procedure provides that the state shall give notice both of its intent to seek the death penalty and notice of the aggravating circumstances not less than thirty days prior to trial. It further provides that "if notice is filed later than this time [30 days], the trial Judge shall grant the defendant upon his motion a reasonable continuance of the trial." The defendants sought no continuance in this case. By failing to move for a continuance, the defendants waived the time requirement for the giving of notice. We note further that there is nothing in the record to indicate either that the defendants were surprised when the state announced the aggravating circumstances it intended to prove, or that the defendants were prejudiced in any way by the timing of the notice.

Defendant Porterfield also raised the specter of prosecutorial misconduct during the closing argument in the sentencing phase of the trial. We have read carefully the argument and are of the opinion that the argument was pertinent to the issues and was predicated upon evidence presented during the trial.

There are several issues directed to the instructions given by the trial court to the jury in the sentencing stage of the trial. In his first complaint, Mr. Porterfield insists that the trial court erred in instructing the jury that they must not allow sympathy or prejudice to influence them in reaching their verdict. We see no error in this instruction. In California v. Brown, U.S. , 107 S.Ct. 837, L.Ed.2d (1987), the United States Supreme Court held that an instruction informing the jury that they "must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling" during the penalty phase of a capital murder trial did not violate the Eighth or Fourteenth Amendments. Id. at 840. According to the Court a reasonable juror would interpret the instruction "as a directive to ignore only the sort of sympathy that would be totally divorced from the evidence adduced during the penalty phase." Id.

He also insists that the trial Judge erred in failing to define "torture" or "depravity of mind" for the jury and erred in its definitions of the terms "heinous," "atrocious," and "cruel." It would have been better had the trial Judge used the definitions set out in State v. Williams, 690 S.W.2d 517, 532, 533 (Tenn. 1985), as they have been approved by this court. However, the definitions given were in our opinion adequate. Further, we find no prejudicial error in the trial court's failure to define the terms "torture" or "depravity of mind." The evidence in this case supports the aggravating circumstance, Tenn. Code Ann., 39-2-203(i)(5), as defined in State v. Williams, (supra) , as the defendant repeatedly struck the victim with a tire iron, inflicting horrible head wounds. Furthermore, the remaining two aggravating circumstances were correctly charged and are supported by the evidence. Under these circumstances there was no prejudice to the defendant by the failure of the trial Judge to define "torture" or "depravity of mind." State v. King, 718 S.W.2d 241 (Tenn. 1986); State v. Duncan, 698 S.W.2d 63, 70-71 (Tenn. 1985).

Further, Mr. Porterfield insists that the trial court committed reversible error in failing to tell the jury that they were not to consider the defendant's silence as evidence against him in the sentencing phase of the trial. The record shows that the defendant did not request this instruction. Absent such a request, the failure of the trial Judge to charge on the constitutional right of the defendant not to give testimony is not error. See Carter v. Kennedy, 450 U.S. 288, 101 S.Ct. 112, 67 L.Ed.2d 241 (1981); Rowan v. State, 212 Tenn. 224, 369 S.W.2d 543 (1963).

Mr. Porterfield also charges that the trial Judge failed to instruct the jury on the quantum of proof required for the imposition of the death penalty. We find no error in this part of the court's instructions. The trial Judge charged verbatim the Tennessee Pattern Jury Instruction, T.P.I. -- Crim. 20.03, formulated for use at the sentencing hearing in a capital case, which contains the statutory language of T.C.A. 39-2-203(g), and it is in our opinion a sufficient and correct charge.

Mr. Porterfield also argues that the jury instructions could be interpreted as mandating the death penalty. The instruction questioned is in the language of T.C.A. 39-2-203(g), which this court has previously held does not create a mandatory death penalty. See State v. Teague, 680 S.W.2d 785, 790 (Tenn. 1984).

Finally, it is argued that the trial Judge committed error in failing to instruct the jury to presume that the defendant would actually serve a life sentence, if that were the jury's verdict. A similar argument has been made in other cases and found to be without merit. State v. Melson, 638 S.W.2d 267, 278 (Tenn. 1979).

The defendants also question the constitutionality of the Tennessee Death Penalty Act. They concede the issue is being raised only to preserve it for later review and acknowledge that this court has repeatedly upheld the constitutionality of T.C.A. 39-2-203 and the constitutionality of death sentences imposed under the statute. See State v. Melson, 638 S.W.2d 342, 367-368 (Tenn. 1982); State v. Strouth, 620 S.W.2d 467, 470 (Tenn. 1981); Houston v. State, 593 S.W.2d 267 (Tenn. 1980). In doing so, this court has pointed out that "there is nothing in either the state or federal constitution, historically or otherwise, which precludes the imposition of the death penalty in accordance with the procedures and under the circumstances provided for in the present statutes of this state." State v. Austin, 618 S.W.2d 738, 741 (Tenn. 1981).

While conceding the constitutionality of the Tennessee Death Penalty Act, defendant Porterfield does take the position that the Act is discriminatorily applied in that "the death penalty is disproportionately imposed upon black citizens who have allegedly killed white citizens." There is nothing in the record to support evidence. Further, if the defendant is to prevail under the Equal Protection Clause of the Constitution of the United States, it is incumbent upon Mr. Porterfield to show that the jury "acted with discriminatory purpose" in his case. See McCleskey v. Kemp, 481 U.S. , 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). This has not been done. In fact, it is not even argued.

All assignments of error are overruled. The judgment of conviction in each case and the sentence imposed pursuant thereto are affirmed. The sentences will be carried out as provided by law on April 15, 1988, unless otherwise stayed or modified by appropriate authority. Costs are taxed to appellants.

 
 

Court of Criminal Appeals of Tennessee

March 25, 1994

GAILE K. OWENS, APPELLANT
v.
STATE OF TENNESSEE, APPELLEE

PERVIS TRYONE PAYNE, APPELLANT
V.
STATE OF TENNESSEE, APPELLEE

Shelby County. Hon. Arthur Bennett, Judge. (Post-Conviction). Shelby County. Hon. Bernie Weinman, Judge. (Post-Conviction)

White, Dwyer, Tipton

The opinion of the court was delivered by: White

These cases are before the court on an interlocutory appeal granted pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure *fn1 and consolidated for appeal. Both cases raise the issue of whether the trial court properly denied motions for ex parte hearings on motions to provide funds for investigative assistance and expert services in post-conviction proceedings. For the reasons set out herein we affirm the rulings of the trial courts but remand for further proceedings consistent with this opinion.

I. Posture of the Cases

Both appellants have been tried and convicted of first-degree murder by juries in the Shelby County Criminal Court. Their cases have been upheld by the Tennessee Supreme Court and one aspect of appellant Payne's case has been ruled upon by the United States Supreme Court. Both appellants are on death row and are indigent.

A. Owens v. State

Appellant Owens was sentenced to death on January 15, 1986. Her conviction and death sentence were upheld by the Tennessee Supreme Court on January 19, 1988. State v. Porterfield & Owens, 746 S.W.2d 441 (Tenn. 1988). A request for rehearing was denied. Id. at 452. Certiorari to the United States Supreme Court was denied. Porterfield v. Tennessee, 486 U.S. 1017, 100 L. Ed. 2d 218, 108 S. Ct. 1756 (1988).

On June 27, 1988, appellant Owens filed a petition for writ of habeas corpus in the United States District Court for the Western District of Tennessee. The federal court initially held the petition in abeyance to allow appellant to pursue remedies under the state Post-Conviction Procedures Act but ultimately dismissed the petition without prejudice.

A lengthy petition for post-conviction relief was filed by counsel for appellant Owens in February 1991. Thereafter, in September, 1991, an "Ex Parte Motion of Petitioner to Maintain Documents and Pleadings Under Seal and to Maintain Related Proceedings Confidential" was filed. The motion requested that the court maintain under seal an "Ex Parte Motion for Authorization of payment for Support Services" and supporting affidavits. The court denied the motion on the basis of Teague v. State, 772 S.W.2d 915 (Tenn. Crim. App. 1988), perm. to appeal denied, (Tenn. 1989).

As a result of the denial, appellant Owens petitioned the trial court to allow an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The trial court granted that motion holding that "if Owens is compelled to present her request in open court, . . . the state will gain access to [the] highly confidential information simply because Owens is indigent." Thus, the trial court concluded that the interlocutory appeal was necessary because "the injury to Owens if the Court is in error is irreparable, severe, will absolutely occur, and cannot be corrected by later appeal."

B. Payne v. State

Appellant Payne was sentenced to death on February 15, 1988. The Tennessee Supreme Court upheld his conviction and sentence on April 16, 1990. State v. Payne, 791 S.W.2d 10 (Tenn. 1990). On writ of certiorari, the United States Supreme Court considered one issue in appellant Payne's case and affirmed the judgment of the Tennessee Supreme Court. Payne v. Tennessee, U.S. , 111 S.Ct. 1597, L. Ed. 2d (1991).

Appellant Payne filed a petition for post-conviction relief on January 13, 1992. Pursuant to a court deadline, appellant filed a Motion to Proceed Ex Parte on Motion to Provide Funds for Investigative Assistance and a Motion to Proceed Ex Parte on Motion to Provide Funds for Expert Services. The court denied the motion on March 6, 1992, but granted an interlocutory appeal on March 20, 1992, finding that irreparable injury would occur if the court's ruling was in error; that a need existed for "a decisive ruling," and "uniformity on this issue," and that a "likely savings in overall time and expense" would result from an interlocutory appeal.

In both cases this court, in divided opinions, granted the interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The state contests those grants and questions whether the issue presented in these consolidated appeals is appropriate for interlocutory appeal under Rule 9. We agree with the previous orders of this court granting the interlocutory appeals and proceed to address the merits.

II.

We are benefitted in this case by excellent briefs on behalf of both appellants, the state, and the Amicus Curiae. The numerous arguments raised in those documents can be categorized into three groups: those based on case precedent, those based on the applicable statute and rules, and those based on the state and federal constitutions. Supporting public policy arguments are also raised. Before we reach the issue of whether a post-conviction, death-sentenced petitioner is entitled to an ex parte hearing to request payment for support services, we must determine whether a post-conviction, death-sentenced petitioner is entitled, under any circumstances, to support services at state expense.

A. Teague and its progeny

The state argues that the issue before us has been determined on at least three prior occasions in the cases of Teague v. State, Carruthers v. State, and Laney v. State. Each of those cases, in some context, discussed the applicability of Tennessee Code Annotated Section 40-14-207 to post-conviction cases.

In the earliest of those three decisions, Walter Lee Carruthers v. State, No. 1164 (Tenn. Crim. App., Knoxville, November 22, 1988), this court declined to disturb a trial court's orders in a post-conviction case denying the appointment of more than one counsel and denying funds for a statistician. The court reasoned that while Supreme Court Rule 13, Section 1 *fn2 allows for the appointment of two attorneys in a "capital case," the section did not "by its own terms apply to post-conviction litigation." Carruthers, supra, slip op. at 13. As to the appointment of a statistician, the court concluded that the trial court's ruling that Tennessee Code Annotated Section 40-14-207(b) which authorizes the compensation of expert and investigators in capital cases, was inapplicable to post-conviction "appeared to be correct." Even if the statute applied, the court determined that no relief was appropriate because the appellant had failed to show a "particularized need for the requested expert or investigator." Id., slip op. at 14.

In Teague v. State, 772 S.W.2d 915 (Tenn. Crim. App. 1988), perm. to appeal denied, (Tenn. 1989), appellant, who had hired his own counsel and investigator, appealed from the denial of his petition for post-conviction relief. Among other issues he challenged the trial court's refusal to appoint and compensate an investigator. This court upheld the trial court's denial finding that:

"[a] fair reading of T.C.A. 40-14-207(b) and Rule 13 of The Tennessee Supreme Court, coupled with the fact that T.C.A. 40-30-121 is silent as to these matters, leads this court to the Conclusion that the provisions of this statute and rule are limited in scope and application to the trial of an accused for a capital offense which the district attorney has announced his intention to seek the death penalty. The statute and rule do not apply to post-conviction proceedings notwithstanding the fact the petitioner has been sentenced to the extreme penalty of death."

772 S.W.2d at 927.

In analyzing the issue, the Teague court noted the inapplicability of an Ake v. Oklahoma analysis to the case at bar. Importantly the court also stressed that "these services . . . were being furnished by the petitioner's family." Id. Concluding that no right to effective assistance of counsel on post-conviction existed, the court found appellant's claim to be without merit.

We have relied on Teague for the general proposition that expert and investigative services are not available for indigent defendants in post-conviction proceedings notwithstanding the fact that Teague had a privately-retained investigator working on his case *fn3 at the time he requested a court-appointed one. Richard Caldwell v. State, No. 9 (Tenn. Crim. App., Jackson, March 21, 1990), perm. to appeal denied, (Tenn. 1991). One of those cases relying on Teague is State v. Thomas Gerald Laney, No. 873 (Tenn. Crim. App., Knoxville, Dec. 14, 1989), perm. to appeal denied, (Tenn. 1990). In Laney, the court upheld the denial of investigative resources finding that "appellant wants the State of Tennessee to finance a fishing expedition for the purpose of pursuing some vague and elusive grounds which may or may not prove to be true. . . . The language [of the allegations] is conclusory in nature and no factual basis was given to support the allegations." State v. Laney, supra, slip. op. at 8-9. Thus, while our court has held that the provisions for expert and investigative services in Tennessee Code Annotated Section 40-14-207(b) are not applicable to post-conviction cases, it has also been concerned with the lack of substance in the cases in which the issue has been raised.

B. Statutes and Rules

Several statutes and rules are relevant to the issue before us. The Post-Conviction Procedure Act was enacted in 1967 to provide "collateral hearings and relief equivalent to the federal habeas corpus relief mandated by a 1963 trilogy of United States Supreme Court cases. *fn4 Gary L. Anderson, Post-Conviction Relief in Tennessee -- Fourteen years of Judicial Administration under the Post-Conviction Procedure Act, 48 Tenn. L. Rev. 605, 607 (1981)(hereinafter 48 Tenn.L.Rev. at , (supra) ). The Act provides for the appointment and compensation of counsel and court reporters for indigent petitioners as "provided for criminal and habeas corpus cases by chapter 14, parts 2 and 3 of this title." Tenn. Code Ann. 40-30-121 (1990 Repl.).

Chapter 14 of Title 40 pertains to rights of defendants. In addition to enumerating trial rights in part one, parts two and three address the rights and methods of securing representation, transcripts, and court reporters for indigent defendants. Sections 206 through 210 relate directly to compensation for counsel. Section 206 delegates to the Supreme Court the obligation to "prescribe by rule the nature of the expenses for which reimbursement may be allowed . . . as it deems appropriate in the public interest." Tenn. Code Ann. 40-14-206 (1990 Repl.). Section 207(b), on which appellants rely, addresses the procedure by which a "defendant [who] has been found to be indigent" in "capital cases" may petition the court ex parte for authorization for investigative or expert services "necessary to ensure that the constitutional rights of the defendant are properly protected." Tenn. Code Ann. 40-14-207(b)(1993 Supp.). Sections 208 and 209 address reimbursement and compensation for appointed counsel and public defenders respectively; Section 210 sets out the procedure for defraying costs in the major metropolitan areas of the state. Tenn. Code Ann. 40-14-208 & -209 (1993 Supp.).

Appellants argue that Section 207(b) when read in conjunction with Tennessee Code Annotated Section 40-30-121 allows ex parte hearings on requests for investigative and expert services in post-conviction proceedings as well. The state, conversely, relying on Teague and the plain language of Section 121 argues that only the counsel and court reporter provisions of Chapter 14 apply since that is the directive of Section 121. While we have noted that Teague is limited by the fact that petitioner already had a retained investigator, we agree with the state that Section 121, by its plain language, only incorporates the counsel and court reporter provisions of Chapter 14.

Our inquiry, however, is not at an end. In accordance with the obligation imposed upon it in Section 206, the Supreme Court has promulgated a rule pertaining to the appointment and compensation of counsel for indigent defendants. Tenn. Sup. Ct. R. 13. By its terms, and by its relationship to the incorporated provisions of Chapter 14, it is relevant and applicable to the issue before us.

Rule 13 is divided into two parts. Part one deals with the appointment of counsel. The rule is specifically applicable to situations "where a petition for habeas corpus [or] post-conviction relief . . . has been filed." Tenn. R. Sup. Ct. R. 13(1). Part two of the rule pertains to the compensation of appointed counsel. The fee structure is set out in subpart B and is determined by the nature of the case. Specifically ten types of cases are listed: adult and juvenile misdemeanor cases; adult and juvenile contempt cases; non-capital juvenile felony cases; General Sessions and Municipal Court adult felony cases; Trial Court non-capital adult felony cases; non-capital appeals; early release or suspended sentence hearings; non-capital post-conviction and habeas corpus cases; probation revocation hearings; and capital cases. Tenn. Sup. Ct. R. 13(2)(B)(1)-(10).

Unless subdivision ten "capital cases" applies to all capital cases, including post-conviction cases, counsel appointed in capital post-conviction cases would not be entitled to compensation. That interpretation would create an absurd and anomalous result in light of the mandate in Tennessee Code Annotated Section 40-30-121 ("indigency shall be determined and counsel . . reimbursed as now provided by chapter 14 . . . .") and Section 40-14-206 ("such rules shall provide for compensation for appointed counsel, not otherwise compensated, in all cases where appointment of counsel is required by law"). We conclude that the only reasonable interpretation is that subdivision ten applies to all capital cases at trial, on appeal, and on collateral attack through either post-conviction or habeas corpus. *fn5

Subdivision ten of the rule is divided into four paragraphs. The first and second paragraphs pertain to attorney fees for "capital cases." They use no terminology other than "capital cases" and, aside from the contradiction implicit in the use of that term given its stated definition, *fn6 no inherent conflict results from their applicability to post-conviction cases. The last two paragraphs in subdivision ten also apply by their terms to "capital cases." Given the Conclusion that an anomaly would result if subdivision ten did not include post-conviction cases, those two paragraphs would, at first glance, appear applicable to post-conviction cases as well. But the verbiage of the last two paragraphs encumbers this Conclusion as it contains terms such as "defendant" and "defense counsel" rather than "petitioner, "petitioner's counsel," or "party." *fn7 Thus we are faced with a difficult choice: either all of subdivision ten applies to post-conviction capital cases notwithstanding the "slip of pen" in paragraph three or the subsection must be interpreted to be miraculously bisected into two applicable paragraphs though not so subdivided. We deem the former approach to have more integrity, particularly in light of the similar "slip" in other portions of the rule. *fn8

These last two paragraphs of subdivision ten provide:

In capital cases, the court may determine that investigative or expert services, or similar services are necessary to ensure the protection of the constitutional rights of a defendant. (Tenn. Code Ann. 40-14-207). The defense counsel must seek prior approval for such services by submitting a written motion to the Court setting forth:

(a) the name of the proposed expert or service;

(b) how, when and where the examination is to be conducted or the services are to be performed;

(c) the cost of the evaluation and report thereof; and

(d) the cost of any other necessary services, such as court appearances.

If the motion for expert services is granted, the court must grant the prior authorization for these expert services in a reasonable amount to be determined by the court. The authorization shall be evidenced by a signed order of the court. The order shall be made part of the record in the case and a certified copy included with the attorney's claim for compensation and reimbursement. . . .

Tenn. Sup. Ct. R. 13(2)(B)(10).

In accordance with our interpretation, then, in the appropriate case, at trial, on appeal, or on collateral attack through either post-conviction or habeas corpus, the court may authorize payment for investigative, expert, or other similar services. An appropriate case for investigative or expert services is a capital case in which the court determines that "investigative or expert services, or other similar services are necessary to ensure the protection of the constitutional rights" of a petitioner. Id. (emphasis added).

After setting out this standard the rule refers parenthetically to Tennessee Code Annotated Section 40-14-207. That reference undoubtedly is to subsection b of Section 207 which includes the identical standard for determining when support services may be authorized at the trial level. Tenn. Code Ann. 40-14-207(b)(1993 Supp.). It is an equally appropriate standard for application to the post-conviction setting.

The burden of establishing that the services are necessary is on petitioner and is a heavy one. Only in limited circumstances in which petitioner establishes that proving an infringement of petitioner's constitutional rights requires investigative or expert services will appointment be appropriate. A petitioner will never be entitled to an expert or investigator solely to assist in searching for infringements. Rather, entitlement will arise only upon demonstration of need.

We can, however, encourage those with the authority to act to consider relevant experiences of others. Congress deemed an ex parte procedure necessary "in order to protect the accused from premature disclosure of [the] case." S. Rep. No. 346, 88th Cong., 1st Sess. 3 (1963). Congress' recognition of the importance of an ex parte proceeding is instructive and persuasive. The scope of our Post-Conviction Procedures Act was to be "at least as broad in scope" as federal habeas corpus statutes. 48 Tenn.L.Rev. at 610, (supra) . If it is not, it creates a risk that federal courts will resort to remands in habeas cases filed long after conviction for appropriate hearings. See Henry v. Mississippi, 379 U.S. 443, 13 L. Ed. 2d 408, 85 S. Ct. 564 (1965). We are also totally cognizant that the overwhelming number of courts that have considered this issue have ruled that petitioners are entitled to ex parte hearings on motions for support services. See e.g., Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir. 1987), cert. denied, 487 U.S. 1210, 101 L. Ed. 2d 894, 108 S. Ct. 2857 (1988); Marshall v. United States, 423 F.2d 1315 (10th Cir. 1970); Williams v. United States, 310 A.2d 244 (D.C. App. 1973); United States v. Tate, 419 F.2d 131 (6th Cir. 1969).

Given the absence of authorization, we must deny appellants the right to present their requests for support services in an ex parts hearing. We, therefore, affirm the trial Judge's denial of ex parte proceedings but remand these cases for a hearing at which the court must determine whether petitioners can establish that support services are "necessary to ensure the protection of the constitutional rights" of these appellants.

Penny J. White, Judge

CONCUR:

(See Opinion Concurring in Part, Dissenting in Part)

Robert K. Dwyer, Judge

(See separate Concurring Opinion)

Joseph M. Tipton, Judge

CONCURRING OPINION

I concur in the results reached by Judge White in upholding the denial of an ex parte hearing in a post-conviction case relative to support services. However, I disagree with her Conclusion that the supreme court intended for the support services provision of its Rule 13.2.B(10) to apply in post-conviction cases.

Her excellent analysis of Rule 13 discloses at least one seemingly inapt mix of "party" and "accused" and an anomaly in terms of whether appointed counsel compensation is covered for capital post-conviction and habeas corpus cases. Yet, I cannot ignore the references to the "defendant" and to "defense counsel" when I seek to glean the supreme court's intent in creating the support services provisions of the rule. Thus, I adhere to this court's implicit holding in Teague v. State, 772 S.W.2d 915, 927 (Tenn. Crim. App. 1988) that Rule 13.2.B(10) does not provide for a court-appointed investigator for an indigent capital post-conviction petitioner *fn1 and I cannot conclude that the supreme court intended it to provide for an expert in such a case.

On the other hand, I do not believe that Teague precludes court-ordered funding of experts in post-conviction cases regardless of what circumstances may exist nor does it purport to analyze all laws, court rules or constitutional provisions which might apply under circumstances not existing in Teague. Also, case law and evidentiary rules arising after Teague was decided bear on the issues. In this respect, I agree with Judge White's analysis and Conclusions regarding the implications of Rule 706, Tenn. R. Evid., and Burford v. State, 845 S.W.2d 204 (Tenn. 1992). Thus, if a petitioner demonstrates that an expert witness is needed -- not just desired or preferable to other equally probative evidence existing -- to establish a ground for post-conviction relief and that such a witness cannot be used because of the petitioner's indigency, then I believe that a trial court is authorized to appoint an expert. Otherwise, the petitioner would be effectively barred from invoking the Post-Conviction Procedure Act to obtain relief from a fundamental constitutional right violation which should void the conviction or sentence.

As Judge White's examples indicate, the need will usually relate to proving the prejudice prong of an ineffective assistance of counsel claim. For instance, if a petitioner had a history of mental health treatment or exhibited recognizable signs of mental disease or defect so as to raise a material issue about sanity, competency to stand trial, or the existence of substantive mitigating evidence, it may be viewed as deficient performance for an attorney not to seek expert evaluation and assistance on behalf of an accused. See, e.g., Beavers v. Balkcom, 636 F.2d 114, 116 (5th Cir. 1981) (failure to pursue knowledge of two previous mental hospital confinements fell short of "thorough pre-trial investigation"); United States v. Fessel, 531 F.2d 1275, 1279 (5th Cir. 1976) (when history of mental health treatment exists so as to make an insanity defense appropriate and the defense lacks funds, it is the duty of the attorney to seek expert assistance); United States v. Edwards, 488 F.2d 1154, 1163 (5th Cir. 1974) (recognizing the "particularly critical interrelation between expert psychiatric assistance and minimally effective representation of counsel"); Cooper v. State, 847 S.W.2d 521, 530-32 (Tenn. Crim. App. 1992) (failure to investigate, follow up, and present evidence of history of mental problems for use at sentencing phase of capital case was deficient performance). In this respect, the singular importance of mental health experts on an issue concerning mental condition has been recognized. See Ake v. Oklahoma, 470 U.S. 68, 80-81, 105 S.Ct. 1087, 1095, 84 L. Ed. 2d 53 (1985). Thus, even if an attorney's performance were viewed as deficient, a mental health expert may be needed to show the prejudice flowing from the deficiency.

On the other hand, I do not view a request for the services of an investigator to be upon equal footing with the request for an expert. A trial court's authority arising from Rule 706, Tenn. R. Evid., relates solely to experts. Also, as Burford indicates, due process may be implicated when a person is denied a reasonable opportunity to present constitutional claims in a post-conviction proceeding. In this regard, the potential difficulties arising from appointed counsel's assumption of the role of an investigator are not such as could be viewed to bar a petitioner from having the opportunity to prove his or her claim. It is the bar, not the increased difficulty, which gives rise to due process concerns. *fn2 Thus, as a practical matter, a showing of such particular need for an investigator so as to implicate due process will not occur.

As for an ex parte hearing relating to the appointment of an expert, I agree with Judge White that no rule, statute or constitutional provision mandates one in the post-conviction context. There are significant differences between a post-conviction petitioner's status and rights and those of a criminally accused. Obviously, the only practical time that the state can have an appointment of an expert reviewed for an abuse of discretion is before the expert services are rendered. An ex parte procedure effectively precludes timely review. On balance, the interests of a criminally accused may easily be weighted more heavily than those of the state in considering whether an ex parte hearing is justified. However, the same balance does not exist for the interests of the parties in a post-conviction action. In any event, the issue is not for this court to resolve.

Joseph M. Tipton, Judge

OPINION CONCURRING IN PART, DISSENTING IN PART

I, too, concur in the results reached by Judge White in upholding the denial of an ex parte hearing in a post-conviction case relative to support services.

Like Judge Tipton, I depart from Judge White's Conclusion that the Supreme Court intended for the provisions of Rule 13.2B(10) to apply in post-conviction cases and find that the trial court properly refused the petitioner's request for investigative services. Teague v. State, 772 S.W.2d 915 (Tenn. Crim. App. 1988). Our Post Conviction Procedure Act was established to protect against the undue depravation of constitutional rights. The trial court's denial of investigative services deprived the petitioner of no such right. Carruthers v. State, No. 1164 (Tenn. Crim. App., Knoxville, November 22, 1988); State v. Laney, No. 873 (Tenn. Crim. App., Knoxville, December 14, 1989).

At the time of the submission of this application for Rule 9 review, I opposed the granting of this interlocutory appeal. For the reasons discussed in that Dissent, as well as the rationale offered herein, I must vigorously disagree with the remand of this matter for further proceedings.

ROBERT K. DWYER, JUDGE

 

 

 
 
 
 
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